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Looking at Future Supreme Court Abortion Fights

By Joseph Fawbush, Esq. on June 28, 2022 9:19 AM

Even with almost two months to prepare, the Supreme Court decision in Dobbs v. Jackson Women's Health, which overturned Roe v. Wade and Casey v. Planned Parenthood, contained a lot of information to digest.

While Justice Samuel Alito's majority opinion included relatively little new information from the leaked draft, the concurring opinions have opened the door to a lot of speculation. Below are four potential legal issues involving abortion that could make their way back up to the Supreme Court.

The Future of Birth Control and Same-Sex Marriage

Perhaps the biggest cause for debate stems from Justice Clarence Thomas' concurring opinion (p. 117), in which the court's longest-tenured justice calls for an end to all unenumerated rights under the substantive due process clause of the 14th Amendment. This includes Griswold v. ConnecticutLawrence v. TexasObergefell v. Hodges, and even Loving v. Virginia. These cases (in order listed) gave the right to birth control, gay sex, same-sex marriage, and interracial marriage.

It is not clear that Thomas has any support for this position, however. Long an outlier in his views, he frequently and proudly ignores precedent when he feels it deviates from the Founding Fathers' intent. This is not the first time Thomas has questioned substantive due process, as you can note from how he cites his own dissents and concurrences to support his own position. He is his own biggest cheerleader in that regard.

Justice Brett Kavanaugh, however, wrote his own concurrence (p. 124) explicitly rejecting the idea that Dobbs necessarily overturns other privacy cases. Yet, the door is open for challenges to the above cases, and it may be only a matter of time until a state attempts to severely limit or reject same-sex marriage, for example, which would put the justices' promises to the test. All except for Thomas, of course, who has clearly indicated he believes the Constitution allows a state to prohibit same-sex marriage and birth control.

Red vs. Blue State Laws

Writing that abortion laws are now in the hands of the states is one thing. But in practice, there are a number of potential gray areas. One of the most pressing issues is whether a woman can travel out of state to get a legal abortion if she lives in a state that prohibits it.

So, how about a classic law school exam question on this issue? Here it is:

Missouri bans abortions at the moment of conception, does not have an exception for rape or incest, and may in the future allow private residents to sue abortion providers and anyone who assists women in getting an abortion. The first two laws are already in effect in Missouri, and the third has been proposed in the state legislature. For the sake of the following hypothetical, let's assume that bill becomes Missouri state law.

Now imagine it is the near future, and a 17-year-old Missouri resident is 10 weeks' pregnant after she was raped and wants an abortion. Her parents agree but don't have the means to leave the state. The teenager has no car, but a friend at her school does. That friend drives the teenager to California, where she gets a legal abortion under California law (as the result of rape, it would be legal in most states even post-Dobbs) and stays for a little while with her friend's family.

Once she is back in Missouri, a teacher who became aware of his student's pregnancy and subsequent abortion files a lawsuit, seeking money from the driver (his student), the driver's family, and the abortion provider. The district attorney decides to prosecute the student criminally, as well as the driver and the California abortion clinic for violating Missouri law.

Before answering the following questions, note that California law already protects abortion clinics from out-of-state civil lawsuits. So:

  • Can the district attorney prosecute the teenager? How about the driver or the abortion clinic?
  • Can the teacher receive money from anyone named in his lawsuit?

The reason this makes for a good hypothetical on a law school exam is because the answer is not at all clear. There is no bright-line rule or clear Supreme Court precedent on how and when a state can regulate the out-of-state conduct of its citizens, provided it affects the state and/or involves one of its residents. Which state law controls? And even if, say, the teacher won his lawsuit in Missouri state court, would it ever be enforceable?

Kavanaugh, in his concurrence, argued that the Constitution's right to interstate travel would prohibit Missouri's law from taking effect. However, while the right to travel between states has a long history in the U.S., there is no clear textual backing for this right in the Constitution. In other words, it is an unenumerated right. Does Thomas agree with Kavanaugh's view? It's not at all clear. And as a concurring opinion, Kavanaugh's view is simply a statement of his opinion, not law.

Medication Abortion

A related issue involves medication abortion. Around half of all U.S. abortions use mifepristone and misoprostol, the so-called "abortion pills." These pills can safely terminate a pregnancy within the first 10 weeks.

Post-Dobbs, abortion providers who prescribe mifepristone and misoprostol will not legally be able to provide pills to women who live in states that ban medication abortion (states will differ on this). In order to safeguard their careers (and freedom) they will need to ensure any prescriptions are issued to people who are in a state that allows medication abortion.

One option for doing this is to check the IP address of the patient's phone who is calling. However, this could be circumvented fairly easily by, for example, using a virtual private network (VPN). Could a state such as Missouri end up charging a medication abortion provider with violating state law if their enforcement mechanisms are not stringent enough? We'll have to wait and see.

Privacy Protections

Finally, there could be some Fourth Amendment considerations for states that are looking to stringently enforce their anti-abortion laws. For example, could a state check the phone of a resident they suspect had an abortion for travel data? What would give state law enforcement probable cause to suspect a resident has had an abortion?

By No Means Done

These and other issues will continue for the foreseeable future. And, as Justice Sonia Sotomayor noted in her dissent, the only thing that has changed since Roe v. Wade was decided is the court's makeup. If more liberal justices get back on the court, will the Supreme Court reverse its reversal?

It's a chaotic situation.

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